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Re: Questions about legal theory behind (L)GPL

On Thu, 13 Jan 2005 07:46:18 -0500, Nathanael Nerode
<neroden@twcny.rr.com> wrote:
> Michael Edwards wrote:
> >Sorry, I'll try to be clearer.  Even if the return performance is
> >impossible without exercising rights only available under the license,
> >it's still performance. 
> Right, this was the very specific question we were getting to.  :-)
> In determining the DFSG-freeness of a license, we seem to have decided
> essentially that requiring action or forbearance regarding activities
> outside the scope of the rights granted in the license renders a license
> non-free.  Of course, that has nothing to do with whether other requirements
> (dependent on the license) are consideration under the law!

That makes perfect sense.  That's the interpretation that makes GPL v2
DFSG-free, which is of course the right outcome, without
misinterpreting its legal nature.

> Couldn't find [Mattei] immediately; I hope to eventually.
> The description in the syllabus is
> "Rule: a promise that is conditional on the promisor's satisfaction with a
> related matter is enforceable."
> Unfortunately, I don't quite grok what "the promisor's satisfaction with a
> related matter" means!  It sounds like it refers to the kind of question
> we're discussing here though.  If it does, that would be the case answering
> the question which started the thread.  :-)

This means that the person on the other end of the contract (promisee)
can't succeed on a claim that the contract is invalid because the
promisor's obligation (an otherwise valid promise made conditional) is
too weak.  The factual situation in Mattei was that A agreed to sell
some land to B, and B agreed to buy conditional on B succeeding in
finding lessees for the building B intended to build.  When B came
back and said "OK, we've found enough lessees and we want to go
forward with the purchase," A tried to back out, and claimed that the
contract was no good because B had reserved the right to back out at
B's discretion.  The court ruled in favor of B, saying that B's
"conditional promise" was sufficient consideration to bind A to the
agreed contract terms.

[An abridged Mattei opinion is available at

> I think that the reliance of the recipients of the GPL-licensed works on
> the license is likely to be useful in proving that there is an
> enforceable contract.

That's probably also a valid argument, but I don't think it's needed,
and I expect that standards of reliance vary more from jurisdiction to
jurisdiction and are harder to demonstrate in the context of a
preliminary injunction proceeding (IANAL).

> This was also interesting:
> >The performance or return promise may be given to the promisor or to some
> >other person. It may be given by the promisee or by some other person
> This tends to indicate that the licensing requirements given by the GPL
> -- and, indeed, the notice requirements in the BSD license -- can constitute
> consideration even though they are not given directly to the licensor.

I think that statement has mostly to do with consideration that comes
from one of the main parties' agents-in-fact (e. g., I authorize my
insurance company to give you an annuity if you waive the right to sue
me for your injury) rather than the less common case of an unrelated
third-party beneficiary.

> Various stuff also links in interestingly to what you say here:
> >For what it's worth, the case law I've read (I don't have Nimmer or
> >the like handy) points out that a "copyright license" is really just
> >an enforceable promise not to pursue an infringement claim under
> >certain circumstances.
> I guess I'm convinced.  :-)

That the GPL is legally an offer of contract?  If so, it's good to
know that the substance of my argument is persuasive to at least one
person besides myself.  :-)

- Michael

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